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COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: LM128Oct22
In the matter between:
Infinity Renewable Energy B.V. Primary Acquiring Firm
and
Actis Sky B.V. and Lekela Power B.V. Primary Target Firms
Introduction
[1] On 18 November 2022, the Tribunal unconditionally approved the large merger
in which Infinity Renewable Energy B.V. (“Infinity Renewable”) intends to acquire
all of the issued share capital in Actis Sky B.V. (“Actis Sky”) and Lekela Power
B.V. (“Lekela Power”).
Primary acquiring firm
[2] Infinity Renewable is a company incorporated in accordance with the laws of the
Netherlands and does not currently control any firms.
[3] The proposed transaction will be implemented alongside an internal restructuring
that will take place in a number of steps and ultimately, Infinity Renewable will be
Panel : Y Carrim (Presiding Member)
: F Tregenna (Tribunal Member)
: S Goga (Tribunal Member)
Heard on : 18 November 2022
Order issued on : 18 November 2022
Reasons issued on : 21 November 2022
REASONS FOR DECISION
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wholly owned and controlled by Infinity Power Holdings B.V. (“Infinity Power”).1
[4] Infinity Renewable, Infinity Energy, Masdar Egypt B.V., the firms they control and
all the firms controlling them (the “Acquiring Group”) largely provides
comprehensive renewable energy solutions to power cities, industries, and
homes.2
[5] In addition, the Acquiring Group develops, finances, owns and operates
renewable energy solutions that facilitate long-term clean power across Africa.
However, the Acquiring Group does not have operations in the renewable energy
sector in South Africa.
Primary target firms
[6] The primary target firms are Actis Sky and Lekela Power. Actis Sky is wholly
owned and controlled by Actis Sky Limited. On the other hand, Lekela Power is
jointly controlled by Actis Sky and Mainstream Renewable Power Africa Holdings
Limited
[7] Other than its joint control of Lekela Power, Actis Sky does not control any other
firms in South Africa and has no activities other than holding the shares in Lekela
Power. Lekela Power indirectly controls five renewable energy project companies
in South Africa.3
[8] Lekela Power and all the firms controlled by Lekela Power (“Lekela Power
Group”), as well as Actis Sky, are primarily active in the generation of renewable
power and deliver utility-scale projects that supply clean energy to communities
across Africa, taking projects from mid- or late-stage development into long-term
operation. In South Africa, the target firms have a controlling interest in wind
energy plants.
1 Infinity Power will be jointly owned and controlled by Infinity Energy and Masdar Egypt B.V.
2 The purpose of these renewable energy solutions is to improve energy security and support
environmental sustainability.
3 Khobab Wind Farm (RF) Proprietary Limited, Loeriesfontein 2 Wind Farm (RF) Proprietary
Limited, Noupoort Wind Farm (RF) Proprietary Limited, Kangnas Wind Farm (RF) Proprietary
Limited and Perdekraal East Wind Farm (RF) Proprietary Limited.
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Competition Assessment
Single indivisible transaction
[9] The Commission noted that both Actis Sky and Lekela Power are subject to the
common shareholding of Actis Sky Limited and both acquisitions will occur
simultaneously to ensure that the primary objective of the acquiring group, to
acquire sole control over Lekela Power, is achieved.
[10] Therefore, the Commission was of the view that the proposed transaction is
indivisible and assessed it as a single transaction.
Relevant product market
[11] There is a horizontal overlap in the activities of the merging parties in respect of
the provision of renewable energy utilizing onshore wind technology.
[12] Previously, the Tribunal has considered the narrow market for the generation of
electricity (i.e., renewable energy) using onshore wind technology as distinct and
separate from the market for the generation of electricity using different
technological methods, such as solar photovoltaic (PV). 4 Further, the Tribunal
has considered the geographic scope for the generation of electricity using
onshore wind technology to be national.5
[13] As such, in this proposed transaction, the Commission assessed the effects of
the proposed transaction in the relevant national market for the generation of
electricity using wind technology.
Relevant geographic market
[14] As the Acquiring Group does not have operations in the South African market for
4 Globeleq South Africa Holdings (Pty) Ltd v SA Springbok Holdings (Pty) Ltd, Sunedison Firefly
Holding (Pty) Ltd, Sunedison Renewable Energy Holding (Pty) Ltd and Terraform Global Africa
Operating (Pty) Ltd (2018), case no. LM164Aug18 and Mulilo Renewable Energy Solar, PV
Prieska (RF) (Pty) Ltd v Mulilo Renewable Energy Solar PV De Aar (Pty) Ltd (2020), case no.
LM174Mar20.
5 Globeleq South Africa Holdings (Pty) Ltd v SA Springbok Holdings (Pty) Ltd, Sunedison Firefly
Holding (Pty) Ltd, Sunedison Renewable Energy Holding (Pty) Ltd and Terraform Global Africa
Operating (Pty) Ltd (2018), case no. LM164Aug18.
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the generation of electricity using onshore wind technology and more broadly in
the renewable energy market segment, the proposed transaction does not result
in a geographic overlap.
[15] Having considered the above, the Tribunal concluded that it is unlikely that the
proposed merger will result in a substantial prevention or lessening of competition
in the national market for the generation of electricity using onshore wind
technology.
Public Interest
Effect on employment
[16] Infinity Renewable and Actis Sky do not have any employees in South Africa.
Due to the lack of geographical overlap in the merging parties’ activities, the
merging parties submitted that the proposed transaction will not have any
negative effects on employees in South Africa and no retrenchments are
envisaged as a result of the proposed transaction.
[17] The employees of the Lekela Power Group were informed about the proposed
transaction and did not raise any employment related concerns and were assured
that the merger is simply a change in ownership and all employment terms and
conditions will remain unchanged.6
[18] Accordingly, the proposed transaction is unlikely to raise employment concerns.
Effect on the spread of ownership
[19] The merging parties submitted that the proposed transaction is a sale by a foreign
company to another foreign entity and will thus not have any impact on HDP
ownership. Further, the merging parties submitted that the proposed transaction
will not result in any change pertaining to the broad-based black economic
empowerment ("B-BBEE”) shareholding in the South African project companies
which are controlled by Lekela Power.
6 Page 1218 of Merger Record.
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Other public interest issues
[20] The proposed transaction raised no other public interest concerns.
Third Party Views
[21] No third party raised any concerns.
Conclusion
[22] Having considered the above, we concluded that the proposed transaction is
unlikely to substantially prevent or lessen competition in any relevant market.
Furthermore, the proposed transaction does not have a negative impact on the
public interest.
21 November 2022
Ms Yasmin Carrim Date
Prof. Fiona Tregenna and Ms Sha’ista Goga concurring
Tribunal Case Manager: Juliana Munyembate
For the Merging Parties: Rosalind Lake and Marianne Wagener of Norton
Rose Fulbright South Africa Inc
For the Commission: Zukile Sokapase and Grashum Mutizwa
Reason:Witnessing Yasmin Tayob Carrim
Signed by:Yasmin Tayob Carrim
Signed at:2022-11-21 17:15:10 +02:00